Ripping Your CD to your IPod isn't "Fair Use"

[The ClayTaurus]

The RIAA geniuses are at it again:

...the joint reply also argues that making backups of your CDs is also not fair use.

The [submitted arguments in favor of granting exemptions to the DMCA] provide no arguments or legal authority that making back up copies of CDs is a noninfringing use. In addition, the submissions provide no evidence that access controls are currently preventing them from making back up copies of CDs or that they are likely to do so in the future. Myriad online downloading services are available and offer varying types of digital rights management alternatives. For example, the Apple FairPlay technology allows users to make a limited number of copies for personal use. Presumably, consumers concerned with the ability to make back up copies would choose to purchase music from a service that allowed such copying. Even if CDs do become damaged, replacements are readily available at affordable prices. Similar to the motion picture industry, the recording industry has faced, in online piracy, a direct attack on its ability to enjoy its copyrights. (emphasis added)

As you can see, the argument is hinged partially on the cost of replacements. Why should you be allowed to make backups of CDs you've purchased when you can replace them? And why should CD backups be legal when users can already decided to purchase from (DRM-laden) services that do allow the limited copying of lossy music files? Here, again, we see the way in which the RIAA et al. would like to see contract law take over the domain of fair use. "Leave it up to DRM, you big dummies!"

But they're not done with that argument. The real kicker is buried in a footnote, where the joint reply suggests the unthinkable: that making copies of CDs for any purpose may, in fact, be infringement.

Nor does the fact that permission to make a copy in particular circumstances is often or even "routinely" granted, see C6 at 8, necessarily establish that the copying is a fair use when the copyright owner withholds that authorization. In this regard, the statement attributed to counsel for copyright holders in the Grokster case, is simply a statement about authorization, not about fair use.

Allow me to translate: just because people have been copying CDs in the past doesn't mean that that they had the authorization to do so, and a general trend does not override such explicit authorization. But as the EFF has picked up, the RIAA is engaging in a little historical revision. Their last comment about the Grokster case is attempting to change the substance of comments that were uttered by their own legal counsel. Why they would do this is abundantly clear when you see the statement in question:

"The record companies, my clients, have said, for some time now, and it's been on their website for some time now, that it's perfectly lawful to take a CD that you've purchased, upload it onto your computer, put it onto your iPod."

It looks like someone is having a change of heart.

In the world of the joint reply, if and when the RIAA and its member studios say that copying your CDs is not permitted, then it's not permitted. Forget fair use. Forget historical precedent. The joint reply here is arguing that copyright owners have the authority to deny what has become fair use—what their own lawyers have admitted is fair use in front of the Supreme Court of the United States. The upshot is that this argument suggests that the most common form of CD "copying"—namely ripping CDs for use on computers and portable players—is not necessarily fair use. The joint reply adds:

Similarly, creating a back-up copy of a music CD is not a non-infringing use, for reasons similar to those the Register canvassed in detail in her 2003 determination that back-up copying of DVDs cannot be treated as noninfringing. [Ed note: see above arguments.] While we recognize that access controls may in some circumstances affect copying, the fact remains that there is no general exception to the reproduction right to allow back-up copying (except the limited exception in § 117 for computer programs) and thus no justification for allowing circumvention of access controls for this purpose.

Inasmuch as the joint reply was grafted in defense of the DMCA, it remains unclear if the RIAA has any plans to take up this line of argument in front of legislators or the public. It does mark, however, yet another development in the erosion of fair use, and it demonstrates that the insidious notion of "customary historic use" stems from part of the industry's campaign to legislate new business models that fly in the face of fair use, the doctrine of first sale, and limited copyrights.

Don't know how many people actually care about this kind of stuff, but for those of you who do, it's interesting that the RIAA thinks fair use does not include making back-up copies of your cd's, or uploading them in any way to a computer or portable mp3 player.

Link.

 

[5stringJeff]

I'm generally a big supporter of businesses, but the RIAA is more like a cartel. :finger: the RIAA!!!

 

[Hobbit]

That whole f-ing organization has been busted twice, that I know about, for collusion, price fixing, and other anti-trust violations. They also promote business practices that screw over everyone they sign. If you get a record deal with an RIAA member company, they loan you the money required for recording and nationwide distribution. You have to land a gold album or close to it just to break even. Then, after all this, they try to put the squeeze on more people by attempting to outlaw p2p, cassettes, CD burners, and now iPods. They're a cruel, evil, obselete dinosaur and I refuse to buy anything from any of the member companies.

 

[dmp]

I would shed few tears of they and the ACLU were 'taken care of'...as a whole.

 

[William Joyce]

Get a group of lawyers together in a room, and they will come up with the wildest shit. In any case, I'd like to see someone try prosecuting me for popping my CD onto my i-Pod. They'll have to pry it from my cold, dead fingers.

 

[Semper Fi]

Get a group of lawyers together in a room, and they will come up with the wildest shit. In any case, I'd like to see someone try prosecuting me for popping my CD onto my i-Pod. They'll have to pry it from my cold, dead fingers.

Defend you're iPod to your death, eh? Haha, I'm sure its worth it....seriously.

 

[William Joyce]

Defend you're iPod to your death, eh? Haha, I'm sure its worth it....seriously.

Wife and I were doing some cleaning and I remember 1) tossing i-Pod in a shopping bag and later 2) tossing that shopping bag into the giant trash compactor. I'd forgotten than in the meantime, I'd taken it out. Still, it was near-heart-attack moment for me.